R. v. Meeks, 2022 CM 2016

COURT MARTIAL Citation : R. v. Meeks, 2022 CM 2016 Date : 20221212 Docket : 201960 Standing Court Martial 4th Canadian Division Support Base Petawawa Petawawa, Ontario, Canada Between : His Majesty the King - and - Sergeant J.K. Meeks, Accused Before : Commander S.M. Sukstorf, M.J. DECISION ON FINDING (Orally) Introduction [ 1 ] Sergeant Meeks originally faced three charges. This Court granted a motion by defence counsel that no prima facie case had been made out on the third charge. [ 2 ] He now faces two offences under

section 130 of the National Defence Act ( NDA ) ; that is to say, aggravated assault contrary to

section 268 of the Criminal Code and assault contrary to

section 266 of the Criminal Code . [ 3 ] Both charges arise from an early morning altercation on 18 June 2019 in Kaiserslautern, Germany where Sergeant Meeks was serving with his unit while participating in an international military exercise. The charges read as follows:

“FIRST CHARGE NDA

Section 130 AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, AGGRAVATED ASSAULT, CONTRARY TO

SECTION 268 OF THE CRIMINAL CODE Particulars : In that he, on or about 18 June 2019, at or near Kaiserslautern, Germany, in committing an assault on Pte Meadows, did wound, maim, disfigure or endangered his life. SECOND CHARGE NDA

Section 130 AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, ASSAULT, CONTRARY TO

SECTION 266 OF THE CRIMINAL CODE Particulars : In that he, on or about 18 June 2019, at or near Kaiserslautern, Germany, did commit an assault on Pte Berthe.” [ 4 ] In reaching the Court’s decision, I reviewed and summarized the facts emerging from the evidence and made findings on the credibility of the witnesses.

I instructed myself on the applicable law and applied the law to the facts, conducting my analysis before I came to a determination on each of the charges. [ 5 ] Due to the passage of time since the alleged offences and understanding that most witnesses have either released from the Canadian Armed Forces (CAF) or have been promoted in the intervening time, most witnesses will be referred to by the rank they held at the time of the alleged offences. Two witnesses, being Corporal Gebeshuber and Master Corporal Melvin were both privates at the time of the alleged events.

When referring to them providing testimony before the court, I will use their current rank, but in referencing the events that occurred in 2019 or as referred to in the testimony of the other witnesses, they will be referred to in the rank of private that they held at that time. [ 6 ] The prosecution called seven eyewitnesses which included the complainants named in the charges, being Privates Meadows and Berthe. While Private Meadows testified, he had little memory of the critical events that make up the charge where he is the complainant.

The accused testified but he also had no memory of the specific time period that captures the two charges before the Court. Uncontested facts [ 7 ] The members involved in the incidents before the Court were all members of Oscar Company, which was designated the parachute company of the 3rd Battalion of the Royal Canadian Regiment (3 RCR). In June of 2019, they were deployed to Ramstein, Germany where they were participating in a United States-led international exercise named Exercise SWIFT RESPONSE.

On the night in question, Oscar Company was split into two where soldiers from 9 Platoon would conduct a parachute jump into Bulgaria with the exercise goal of seizing the airfield. There was a rear party who remained in Ramstein, Germany, who would be flown into the airfield in Bulgaria the next day and would take up a defensive position. [ 8 ] After conducting their duties for the day, some members of the rear party went out for dinner. It was the only relaxed day of the exercise that they had.

The members went to dinner in Kaiserslautern, Germany which was a town located far enough away that they had to take a train or a taxi from point to point. [ 9 ] Sergeant Meeks went to dinner with a small group that included Captains Simmons and Korajilija and Private Meadows (Group A). There was a second group of members that took the train to the same town, Kaiserslautern, Germany. That second group included Privates Melvin, Prupus, Berthe and Gebeshuber. (Group B). [ 10 ] Although the two groups socialized and travelled separately, they both ended up at the same restaurant for dinner.

They ate and socialized in their separate groups. At one point, Sergeant Meeks bought the members of Group B a round of shots of a drink called “Jägermeister”.

[ 11 ] Master Corporal Melvin described the members of Group B to be pretty happy, as they were in Germany eating schnitzel and having someone buy them drinks. [ 12 ] While at the restaurant, they all consumed what they described as schnitzel and pints of beer and members of Group B described sharing a big “tube” or “showboat” of beer that was the equivalent of four or five pitchers (the size of the water pitcher in the courtroom). [ 13 ] Witnesses within Group A, which included both Sergeant Meeks and Private Meadows testified that they ate at that restaurant from approximately 8 p.m. until 10 p.m.

After dinner, most of Group A decided to go to a bar (referred to by the witnesses as the “nightclub”) located down the street. [ 14 ] Members from Group B decided to check out the nightlife in Germany and they proceeded to visit multiple bars. Master Corporal Melvin described it as “bar-hopping”, having a drink in each bar. He estimated that they hit at least four different bars. [ 15 ] At the end of the evening, or in the early morning hours of the next day, members of Groups A and B coincidentally ended up at the same nightclub.

The entrance to the nightclub was at street level and once inside, there was a stairway that led up to the nightclub itself. [ 16 ] In the early morning hours of 18 June 2019, while at the nightclub, the two captains received messages indicating that they and everyone they were with had to return to the Ramstein Air Base immediately as there was a communications lockdown. [ 17 ] Captain Korajilija testified that he told all the soldiers he saw that they had to return to base. He recalls telling both Sergeant Meeks and Private Meadows.

After Captain Korajilija provided that direction, he stepped outside, googled a German taxi company to arrange taxis to bring the soldiers back to the base. [ 18 ] Witnesses from Group B testified that they had only been at the nightclub for a short time, some estimating it was only about thirty minutes when they received notice to return to base.

In fact, Master Corporal Melvin explained that he had just gotten a beer and likely had to guzzle it when they were told they had to leave. [ 19 ] From the evidence, I concluded that all of the members directly involved in the incident had been drinking and the evidence suggested most were intoxicated, some more than others. [ 20 ] Some of the soldiers did not take the order seriously as they were drunk, having a good time and lingered at the nightclub. This necessitated Captain Simmons and Sergeant Meeks to return together to formally order the stragglers outside.

They had been told to leave the nightclub twice, but the second time it was not a request, but a formal order expected to be followed. Witnesses described Sergeant Meeks as becoming increasingly agitated as he attempted to corral the soldiers outdoors to meet the taxis. [ 21 ] Slowly, all the soldiers amalgamated outside where they waited for taxis.

It is what happens outside after this point where the consistency in the evidence diverges. [ 22 ] Very few of the witnesses saw the unfolding of all the incidents that relate to the charges before the Court and I noted that depending on when the witnesses paid attention, they witnessed different aspects of the conflict. Consequently, the Court had to be attentive to this in determining what evidence it found most reliable. [ 23 ] The evidence suggested that Sergeant Meeks does not recall the exact incidents before the Court.

In the background of the ongoing trial, both counsel and the Court were alert to the potential defence of not criminally responsible (NCR) being raised. The accused has until the formal pronouncement of finding on the charges to raise the defence and neither the Court nor the prosecution can raise it prior to this stage. In light of this possibility, I permitted much wider questioning of all the witnesses in order to assist the parties in deciding whether or not they wish to raise the issue.

However, I did not consider this evidence in assessing whether the prosecution has proven each of the charges beyond a reasonable doubt.

Summary of witness testimony with respect to the charges [ 24 ] Below is a

summary of the witness testimony beginning with the accused and then prioritized in order based on its relevance to the charges before the Court and the reliability I have attached to it, which will be explained at length in the latter section. Sergeant Meeks [ 25 ] Sergeant Meeks joined the CAF in September 2005 from Kingston, Ontario. He completed his Soldier Qualification and infantry training in Meaford, Ontario. He was posted to the RCR in late 2006. First Tour to Afghanistan [ 26 ] His first deployment to the Panjwai District in Afghanistan was for eight and a half months.

He described it as filled with gun fights, improvised explosive device (IED) contacts, exposures, suicide bombers and numerous deaths within the company. He explained that they were also shot at by a friendly tank during that deployment. He personally responded to a double amputation of one of his friends on 20 March 2009. He testified that, on that day, two Canadians and an interpreter were killed. He has a dream that repeats over and over again where he feels that if he performs first aid for longer, the outcome would be different, but in the end, the injured person always dies.

Second Tour of Afghanistan [ 27 ] When he returned from Afghanistan, there was a call for volunteers for the upcoming rotation, so he volunteered to be redeployed with 1 RCR. [ 28 ] He described his second tour to Afghanistan as a headquarters deployment where he was a close protection operator. His role was to support the Chief of Staff with evacuation and support plans. He described the second tour as being heavy on finding unexploded IEDs, etc.

The types of explosions he experienced were such that they would have to detonate them in place in order to permit their travels. [ 29 ] He was then redeployed to 1 RCR Battle Group, and it is after this he was posted to 3 RCR where he developed a specialty in mountain operations. [ 30 ] Sergeant Meeks was later diagnosed with post-traumatic stress disorder (PTSD) as a result of his experiences in Afghanistan. He described how these experiences led to him developing a normalized practice of hyper vigilance in everything he does.

He explained that, when you are in combat, you always look for signs of IEDs, bombs, weapons, ammunition and medical supplies, etc., and that this practice has since dominated all aspects of his civilian life. North Atlantic Treaty Organization – Operation (Op) REASSURANCE [ 31 ] He next deployed with the reconnaissance platoon and snipers on Op REASSURANCE. He served as the subject matter expert for fast roping which involved roping out of the helicopters, jumping into the Baltic Sea and then laddering back up into the helicopter. He described this deployment as one of the highlights of his career.

Incidents before the Court

[ 32 ] With respect to the incidents before the Court, Sergeant Meeks stated that his memory of the early morning in question is very clear up to a specific point. He admitted that he has experienced a slight change of memory since the incidents, but the only change is with respect to specific and exact details on precise words. [ 33 ] Sergeant Meeks was the Platoon Warrant Officer of 7 Platoon and part of the rear party and the non-jumpers who were to join their fellow soldiers in Bulgaria the next day.

Earlier that day, they conducted rehearsals on how they would flow into Bulgaria and join the rest of their company. Once they had completed their dry rehearsal and he had given out the stores needed, they were given the evening off, so they decided to go out for dinner. [ 34 ] They departed the base around 1700 hours and had dinner at a restaurant. He consumed a meal of perogies and schnitzel.

He noticed members of their platoon inside the restaurant bar, so he thought it was a good opportunity to buy them each a shot of Jägermeister to celebrate being in Germany and to thank them for their work. [ 35 ] At the restaurant, he drank a flight of five individual German stouts and then had one or two pints out of the big tube as well as a shot of Jägermeister. From the restaurant, he went to a nightclub with Captains Simmons and Korajilija and they separated themselves from the remainder of the group. They sat on the other side of the bar discussing how best to prepare themselves for the upcoming exercise.

He described their platoon as being few on numbers but having heavy weapons. He said they engaged in mostly shop talk. [ 36 ] He bounced between the two captains for conversation that night and he believes at one point he bought a round for them. The night was relaxed and he was not planning to get very drunk given his role as the Platoon Warrant Officer for a live-fire exercise that was expected to unfold the next day. [ 37 ] At the nightclub, he purchased about four Jack Daniels and Coke (singles) and he does not recall having/purchasing shots.

He explained to the Court that, at that time, he had a high tolerance of alcohol because, normally, he was an extremely heavy drinker. He explained that he could easily consume ten double Jack Daniels and Coke a night as well as between twelve and twenty-four beer. He explained that his pattern of drinking increased and got worse starting at the time of his return from his first deployment to Afghanistan.

He has not consumed any alcohol since this incident and has successfully completed an alcohol rehabilitation program. [ 38 ] He described how the two captains received the information regarding the communications lockdown. He believes that they both got a call, but he was not sure who got it first, recalling that they both looked at their respective phones at the same time. He said that he went to inform the soldiers at the other side of the nightclub that they all needed to return to the base. He told the Court that half the soldiers exited in a timely manner but the other half remained in the nightclub.

He explained that both he and Captain Simmons then went over to explain to them the severity of the situation. [ 39 ] He recalls Private Melvin trying to go back into the bar. He does not remember arguing with Private Melvin, but explained that he remembers being with Captain Simmons when he told Private Melvin to leave the nightclub. [ 40 ] Having sustained a broken back on a parachute jump, Sergeant Meeks used himself as an example to highlight the seriousness of the situation to the soldiers.

The bar had two stories and there was a flight of stairs down to the exit which then led to the outside and there was small gate. He recalls that the immediate area outside of the nightclub was dark with ambient light and the buildings were mostly modern buildings of two stories with a sidewalk. He testified that once they got down to the ground level that is where his memory starts to go fuzzy as he is not able to recall exact details. In terms of his own level of intoxication, he recalls feeling that he had a good “buzz on” and that was about it.

After the communications lockdown was initiated, Sergeant Meeks heard something about Warrant Officer Oakley, who was his friend, and feared for his safety; however, the injured solider was not Warrant Officer Oakley, but he was actually from Warrant Officer Oakley’s platoon. He told the Court that he has known Warrant Officer Oakley since 2012 and they were very close, having served together in the field. They had both just completed their warrant officers’ course together. He does not recall who told him this as his memory is very broken.

He does remember some shouting but does not remember who was shouting. [ 41 ] The next thing he remembers is the sun coming up and people in the city coming to work. He was not sure where he was but described the area as a busy intersection with structures over two stories. He was confused and disoriented, which he described as feeling different from being hung over. He got a hold of the company 2 IC who informed him that Warrant Officer Royce would come to pick him up.

He had Warrant Officer Royce’s contact information and sent him a “geolocation” indicating where he was, and Warrant Officer Royce picked him up ten or fifteen minutes later.

[ 42 ] He described having a large bump on his head which he showed Warrant Officer Royce as they returned to the base. After parking their vehicle and walking to their accommodation, he noticed everyone that had been there the evening before huddled together. When he went inside, he remembers Warrant Officer Hatcher, the quartermaster asking to see his knuckles, which he thought was strange.

Afterwards, he remembers having a conversation with Captain Simmons who explained to him what had taken place, leaving him in shock. [ 43 ] He was informed that he would be sent home and that he had to see the Regimental Sergeant Major as soon as he got home. He was escorted back to Canadian Forces Base (CFB) Petawawa in Canada about a day or a day and a half later. He has attempted recollection or recalling his memory multiple times since the incident unfolded and there are maybe small things that he can recall, but the baseline of having no memory of the incidents before the court is always the same.

Private Prupas [ 44 ] Private Prupas testified that: (

a) he went to Kaiserslautern around 1700 or 1800 hours. with Privates Berthe, Gebeshuber, Melvin and Murdoch; (

b) they started at the restaurant and then they went to a number of bars where they had drinks and eventually ended up at a nightclub; (

c) they were told that there was a communications lockdown and that they had to go back to the base; (

d) he believes that it was Sergeant Meeks who told him that they were to leave and return to base; (

e) when Sergeant Meeks told him, Sergeant Meeks’ demeanour was serious and there was a sense of urgency; (

f) although they had been told to leave, they stayed because they were drunk and they were not taking the order to return to base seriously enough. They just did not get the sense of urgency; (

g) next, Captain Simmons and Sergeant Meeks came back up into the nightclub and basically ordered them out; (

h) although he cannot remember who gave them the order, he confirmed Sergeant Meeks was present; (

i) after the second time they were told to leave, they went outside and they shuffled out to the front of the bar; (

j) he described that the exit from the bar led outside onto the sidewalk then on to the street and there was a brick building on the other side; (

k) they were “a gaggle” standing outside the nightclub; (

l) Private Melvin went back up to the bar for a brief minute for his cell phone. After being cross-examined by defence counsel, he confirmed that it was actually cigarettes he had retrieved; (

m) from what he recalls, when Private Melvin came back down from the bar, there was an altercation between Private Melvin

and Sergeant Meeks; (

n) Sergeant Meeks was upset with Private Melvin because Sergeant Meeks had told everyone to leave the bar, but Private Melvin went back in and then there was an argument about that; (

o) he cannot recall what Sergeant Meeks said, but he described him as angry; (

p) a shouting match ensued between Private Melvin and Sergeant Meeks which involved some pushing; (

q) he does not recall exactly who engaged in the pushing, possibly both or maybe just one of them; (

r) both he and Private Berthe tried to split up the argument but somehow Private Berthe got involved and became part of the altercation; (

s) they tried to get Private Melvin and Sergeant Meeks away from each other; and (

t) as they were trying to break up the argument, Sergeant Meeks grabbed Private Berthe by the shirt and held him against the wall. Private Prupas’s description of the assault on Private Meadows [ 45 ] Private Prupas provided evidence to the following effect: (

a) it was after Private Berthe was held up against the wall that Private Meadows stepped in and tried to separate the two; (

b) he was right there and could hear the interchange very well; (

c) he said that Sergeant Meeks pushed Private Meadows away and they “squared up” on each other before Private Meadows fell to the ground. He remembers Private Meadows yelling something about his back; (

d) he was not sure if Private Meadows got pushed or tripped to the ground, but he recalls seeing a shove by Sergeant Meeks; (

e) Private Meadows got back up and looked like he was going to push Sergeant Meeks before getting thrown to the ground again by Sergeant Meeks; (

f) while on the ground the second time, Private Meadows was yelling about his glasses being broken and then he got kicked by Sergeant Meeks while he was lying on the ground; (

g) he described the kick as a regular kick and he only saw one kick; (

h) when Sergeant Meeks kicked Private Meadows, Sergeant Meeks said something to the effect of “night night Nigger”

(

i) he thinks that Private Meadows got knocked out from the kick; (

j) after the kick, Sergeant Meeks was pulled away and Private Meadows was tended to; and (

k) he described Sergeant Meeks as being angry, inebriated and pissed off. [ 46 ] Under cross-examination he confirmed: (

a) that Private Melvin had returned for his cigarettes and not his cell phone; (

b) it was after Private Melvin returned that he and Sergeant Meeks had their argument; (

c) he remembers both Private Melvin and Sergeant Meeks being held back from fighting each other; and (

d) after Private Meadows was first thrown to the ground, it was very possible he got up and chased Sergeant Meeks because Private Meadows was really pissed off when he was pushed to the ground. Private Berthe [ 47 ] Private Berthe testified as follows: (

a) prior to the incident, Sergeant Meeks had been his chain of command so he interacted with him daily; (

b) the evening before the incidents in question, he had gone out with his fellow soldiers, which included Privates Melvin, Gebeshuber and Prupas; (

c) although it was not pre-planned, their group ended up at the same restaurant where Sergeant Meeks and his group were eating; (

d) he spoke with Sergeant Meeks at the restaurant which was the first place they stopped to eat and Sergeant Meeks was “fine” at that time; (

e) after frequenting a few places, they all ended up at the same nightclub as Sergeant Meeks and his group; (

f) he cannot recall how much he personally drank that night; (

g) he recalls the arguing and the fighting and noted that Sergeant Meeks and Private Melvin started fighting first; (

h) he said voices were raised, but he could not hear what was actually being said, but that the tone was raised, vocal and affirmative;

(

i) he was approximately a couple of feet away; (

j) in response to Sergeant Meeks and Private Melvin arguing, he got in between them so that they did not start fighting; (

k) as a result of him separating them, they did not fight; (

l) Private Melvin did not react to him getting in between them, but he said that Sergeant Meeks pushed him out of the way with his hands but told the Court he did not feel assaulted at all; (

m) he stated that he felt like an obstacle and he did not feel like he was in danger; (

n) he described how Sergeant Meeks put his hand on his shoulders and pushed him to the side as he tried to go towards Private Melvin; (

o) he described that only light force was applied by Sergeant Meeks when he placed his hand on his shoulder; (

p) after Sergeant Meeks moved him to the side, he explained that other people started showing up, which included Private Meadows. He explained that Private Meadows started getting “hyped up”, so he positioned himself in-between them; (

q) Sergeant Meeks reacted in an aggressive manner; (

r) he could accurately describe the outside as brick tiles, street lights, sidewalks, and Gothic architecture when they were on the street; (

s) they decided it was best to leave the situation, so he, Private Melvin, Private Prupas and, he believes, Captain Simmons started to walk away to call a taxi but then they heard fighting and he next saw Private Meadows on the ground and Private Gebeshuber holding his head; (

t) he observed Private Meadows to be breathing, but unconscious; and (

u) the last two people who stayed behind with Private Meadows were Private Gebeshuber and Captain Simmons and the others returned to base. [ 48 ] Under cross-examination, he confirmed that: (

a) Private Melvin had forgotten his cigarettes and was going back into the bar for them; (

b) Sergeant Meeks was upset about Private Melvin going back into the bar; (

c) he admitted his memory is not as strong today;

(

d) he drank mostly beer and had one shot. He does not recall what shot or liquor he had as he did not purchase it; (

e) with respect to the beer he drank, he had a tall glass, from what he recalls, but he also recalls sharing beer from the huge tube which he indicated would be in addition to the tall glass; and (

f) during the argument between Sergeant Meeks and Private Melvin, there were a lot of people, meaning fellow soldiers, around. Captain Simmons [ 49 ] Captain Simmons testified that: (

a) the original group that he went out with on the evening of 17 June 2022 included Warrant Officer Hatcher, Sergeant Meeks, Warrant Officer Royce and Captain Korajilja; (

b) they had dinner at a restaurant where they drank beer, but he cannot recall how many beer he drank, but does recall they had a beer tower for the table at one point; (

c) he does not recall “seeing Sergeant Meeks drinking”, but he also “does not remember him not drinking”; (

d) they ended up at a nightclub at the end of the evening where a group of junior ranks also ended up; (

e) while in the nightclub, there was nothing that stood out beyond the normal; (

f) while at the nightclub, he received a call from the company 2 IC, telling them to return to base and that there was a communications lockdown; (

g) he immediately started to round up everyone, telling them that they had to return to the base; (

h) he told Sergeant Meeks directly that there was a communications lockdown and they had to return to base; (

i) he was trying to organize taxis to get the group home when an altercation started to brew outside the bar; (

j) he recalled Sergeant Meeks explaining to the junior ranks what a communications lockdown was and the implications of that being enacted. Sergeant Meeks was impressing upon them the seriousness of the situation and that they could have a soldier on the parachute drop zone with a broken back; (

k) he was not sure what transpired later, just knows that that situation turned into raised voices and then pushing and shoving; (

l) with respect to raised voices, he said he observed Privates Meadows, Melvin and Berthe all yelling at Sergeant Meeks; (

m) he did not hear Sergeant Meeks say anything specific at that time;

(

n) he described Sergeant Meeks’ demeanour outside as agitated and aggressive and not the same demeanour he had when leaving the bar; (

o) with respect to the pushing and shoving, he was not sure if Private Meadows pushed Sergeant Meeks but he saw Sergeant Meeks push Private Meadows and he illustrated it as a two-handed push out from his chest forward; (

p) he described the push from Sergeant Meeks as hard enough that Private Meadows had to step back to maintain his balance; (

q) he then saw Sergeant Meeks punch Private Meadows; (

r) he described the punch by Sergeant Meeks as being with a closed fist, a single punch which hit Private Meadows on the left hand side of his face; (

s) Private Meadows appeared to be knocked out when he fell to the ground and then Meeks soccer-kicked him in the face when Private Meadows was still on the ground; (

t) he stated that Private Meadows did not respond to the soccer kick; (

u) after Sergeant Meeks kicked him, both Captain Korajilja and he pulled Sergeant Meeks away, and as they were doing that, Sergeant Meeks appeared to drop his heel on Private Meadows head; (

v) he said it was very difficult for him to say how hard Sergeant Meeks kicked Private Meadows; (

w) he explained that as he and Captain Korajilja were pulling Sergeant Meeks back, the three of them fell over and then he convinced Sergeant Meeks to walk with him around the corner and he talked to him, trying to calm him down. While he was there with Sergeant Meeks, Captain Korajilja was trying to assess the condition of Private Meadows; (

x) while around the corner, he described Sergeant Meeks as visibly angry, clenching his fists and not really looking at him. He further described: i. he was in disbelief at that point and asked Sergeant Meeks, “Why did you do that?”; ii. in trying to defuse the situation, he kept reminding Sergeant Meeks that he has a daughter and that what he just did would have consequences; iii. Sergeant Meeks responded to him with, “That’s what I do”; iv. he understood “That’s what I do” in the context of Sergeant Meeks just coming off a fight where he knocked the other person out, and that is what he does; v. he did not recall any additional specific words that Sergeant Meeks said;

vi. he described Sergeant Meeks as hearing him, but not listening and did not appear to understand what Captain Simmons was saying; vii.

Sergeant Meeks was not looking at him, he was looking to his left and to his right and grunting with an adrenalin rush and not focussed on what he was telling him; viii. the police arrived shortly thereafter, which included the American military police as well as the German city police and they tried to figure out what happened; ix. he believes that it was the residents living in the surrounding buildings who called the police as they were out on their balconies trying to figure out what was going on; x. he rode in the ambulance with Private Meadows.

Private Meadows had a neck brace on and his face was very swollen.

In his assessment, Private Meadows was unconscious; xi. once they arrived at the hospital, they could not get a room so he waited with Private Meadows in the hallway and a doctor came out to talk to him and showed him the X-ray or imagery of Private Meadows’ head; xii. the first doctor spoke good English and explained things to him, but after she left, Private Meadows was still not conscious and the relief doctor did not speak English so they did not get any further updates; xiii. his understanding of the X-ray was that Private Meadows had a fracture above his ear, a skull fracture and a fracture in the bone under the eye and nose and, because of the injury, there was air getting to his brain, so they were concerned about an infection and had given him antibiotics; xiv. he stayed at the hospital until late the following morning and afternoon when Captain Korajilja came to relieve him; and xv.

Private Meadows regained consciousness after Captain Korajilja arrived, but while Captain Simmons was still there. Corporal Gebeshuber [ 50 ] Corporal Gebeshuber’s testimony was as follows: (

a) while leaving the bar, he heard raised voices on the street, but did not recognize the voices, other than that they were coming from their group, being Privates Meadows, Berthe, Melvin and Sergeant Meeks; (

b) he originally ignored the raised voices as there was nothing happening and he was more worried about one of his friends possibly having died; (

c) at first he saw some shoving and fighting between Private Berthe and Sergeant Meeks and it all happened so quickly; (

d) he was not sure how Private Meadows got mixed in, but he thought maybe Private Melvin was trying to break it up and then Private Meadows was on the ground;

(

e) he went to the scene and tried to make sure that Private Meadows was okay, as Sergeant Meeks had already been separated from the group; (

f) he could not describe how Private Meadows ended up on the ground; (

g) he observed Private Meadows as being either unconscious or close to unconscious and that his face was scratched up and he was not very responsive; (

h) Private Meadows was lying on the street against the curb so he put his hand under Private Meadows’ head and, at that time, he noticed scratches on Private Meadows; (

i) there was blood on Private Meadows’ face, but he did not notice any blood on his own hands from holding the back of Private Meadows’ head; (

j) he checked and confirmed that Private Meadows was breathing; (

k) he was not able to talk to Private Meadows nor could Private Meadows respond; (

l) the police and paramedics arrived almost right away and he let the professionals deal with it at that point; (

m) he was present when they loaded Private Meadows into the ambulance and Captain Simmons went with him to the hospital; (

n) Private Meadows was lying on the side of the street closer to the bar and Sergeant Meeks was on the other side; (

o) he did not notice anything out of the ordinary with Sergeant Meeks at that time; and (

p) he described Private Melvin as pretty drunk, but said he was still able to walk and talk. Captain Korajlija [ 51 ] Captain Korajlija testified that: (

a) they were all in the nightclub when they received a message from their company 2 IC telling them to return to the base and that there was an immediate communications lockdown; (

b) he was sitting with Captain Simmons when he got the message and Captain Simmons was the first person he told; (

c) he told all the soldiers he could find that they had to return to base immediately and he specifically remembers telling Sergeant Meeks;

(

d) while he was outside trying to arrange cabs to take the soldiers back to the base, there was a commotion and he went to investigate. He described the commotion as yelling and agitated voices. More specifically, he stated that everyone was yelling and he could not say who exactly; (

e) he saw Sergeant Meeks hit Private Meadows in the face. He described it as a punch in the face with a closed fist that was strong enough to put Private Meadows on the ground. He stated that from what he remembers Private Meadows remained on the ground; (

f) he stated that, shortly after the punch, both he and Captain Simmons jumped forward and grabbed Sergeant Meeks on either side and pulled him away from the scene; (

g) from what he remembers, as he and Captain Simmons were pulling Sergeant Meeks away, Sergeant Meeks kicked Private Meadows in the face, but he cannot recall exactly where the kick landed. He stated it was the front or toe of Sergeant Meeks’ shoe that hit Private Meadows in the face, but he was unable to describe how hard the kick was; (

h) he described Private Meadows as appearing to be unconscious but he does not recall the condition of Private Meadows’ face; (

i) he did not recall Sergeant Meeks saying anything when he and Captain Simmons were pulling Sergeant Meeks away; (

j) Captain Simmons then grabbed Sergeant Meeks and they walked about twenty to twenty-five metres from where Captain Korajlija was standing; (

k) after Sergeant Meeks was removed from the scene, Private Meadows remained on the ground and the others were instructed to get into the taxi to return to the base; and (

l) when asked to describe Sergeant Meeks' level of sobriety, he stated that he could not remember. While they were at dinner, he only recalled Sergeant Meeks drinking beer, but could not recall how big the beers were. While they were at the club, he did not see Sergeant Meeks drink anything and, if he did, drink, he did not see. Private Meadows [ 52 ] Private Meadows testified in examination-in-chief as follows: (

a) that he went to dinner in town around 1700 hours with the group which included Sergeant Meeks and they walked around for a while and then stopped at a restaurant where they sat on the patio to eat and had a couple of beers; (

b) he estimated that while at the restaurant, he drank approximately three or four beers. He described the size of those beers as normal but also stated that they had this “big showboating” big pitcher of beer; (

c) he is not sure how many beers Sergeant Meeks consumed, but he would estimate about the same amount; (

d) while at the restaurant, he described Sergeant Meeks as happy; (

e) they then went to another bar which seemed like just a pub;

(

f) he did not drink at the pub, and he did not see Sergeant Meeks consume any beer either; (

g) they then went to a final place which was a nightclub where he had a few beers and a shot. The beers were in bottles and the shot was a Jack Daniels which he purchased himself; (

h) although there were many of his fellow soldiers at the nightclub, he was hanging out with Privates Prupas and Blackburn; (

i) he saw Sergeant Meeks at the nightclub but he could not speak for his demeanour or how much he drank as he did not spend time with him; (

j) he estimated that they were at that nightclub for about four or five hours; (

k) Captain Korajilja advised them that something had happened during the jump in Bulgaria and that possibly someone died; (

l) when he learned that they had to return to the base, he almost instantly went out onto the street to catch cabs to take them back to the base; (

m) while he was on the street or on the curb trying to get a taxi , most of the soldiers were standing to the right about twenty-five feet away on the sidewalk; (

n) he did not notice who all was there until something happened and he noticed a commotion to his right and saw Captain Korajilja and Captain Simmons on the back of Sergeant Meeks and described Sergeant Meeks as having a chokehold on Private Berthe; (

o) he described Sergeant Meeks as angry at that time, but he could not hear what was being said; (

p) he stated that he ran over to free Private Berthe, but once Private Berthe was freed, Private Meadows was then thrown to the ground by Sergeant Meeks; (

q) he does not really know how this happened, he just remembers being thrown to the ground, perhaps by his shirt or his arm; (

r) he got up and noticed that Sergeant Meeks and Private Melvin were advancing towards each other so he got in between the two of them; (

s) he asked Sergeant Meeks what he was doing and he told Private Melvin to get back and that is the end of his memory; (

t) he estimated that he was about an arm’s length from each of them as he believed he had his arms out in their respective directions; (

u) he described Sergeant Meeks as angry, violent and enraged; (

v) he confirmed that he never heard Sergeant Meeks say anything;

(

w) but he also confirmed that Sergeant Meeks and Private Melvin appeared to understand each other perfectly; (

x) he estimated it was less than five minutes from the time he freed Private Berthe to the end of his night; (

y) he stated that Private Melvin was listening to him as he kept telling him to get back; (

z) he spoke to Sergeant Meeks twice, asking him what he was doing once when he had Private Berthe in a headlock and then again when he was looking to fight Private Melvin; however, he could not tell if Sergeant Meeks understood as he was mostly looking at Private Melvin; (aa) when asked if Sergeant Meeks understood him, he indicated that Sergeant Meeks did not stop; (bb) the next thing he remembers is waking up in the hospital the next morning, at maybe 1100 hours.; (cc) he regularly worked with Sergeant Meeks and was able to identify him in Court; (dd) he is six feet tall and weighs about 155 or 160 pounds, but, in June 2019, he weighed about 150 or 155 pounds; (ee) when he woke up, he did not feel well, as the left side of his head suffered a triangular fracture; (ff) he described the pain as substantial and he could not see out of his left eye; (gg) he had a headache and loss of sensation along his cheek bone.

It took three of four days for his eye to open.

When his eye finally opened, he had double vision for approximately ten to twelve days; (hh) he still has numbness along where the fracture was, a symptom that has lasted just under three and a half years; (ii) when he would awake in the mornings, everything was blurry until later in the day; (jj) the German doctor told him that he had an air bubble between his skull and his brain and, at the time, he attributed his headaches to this; (kk) the Court was shown photos of him, entered as exhibits, which were taken by himself in the hospital after the fight; (ll) he said that they accurately represent what he looked like at the time; (mm) after he was discharged from the German hospital, he was transferred to the American medical facility at Ramstein Air Base where he spent time before he was medically evacuated back to Canada; (nn) he released from the CAF in August 2019 because his terms of service was complete;

(oo) he had a positive interaction with Sergeant Meeks at dinner, but did not really see him for the rest of the night other than from across the room at the nightclub where Sergeant Meeks seemed fine; and (pp) he estimated that from the time they were told to go back to the base until the moment he lost his memory was approximately ten to fifteen minutes. [ 53 ] Under cross-examination, Private Meadows testified that: (

a) that he was intoxicated before the incident; and (

b) he rejected the suggestion that he wanted to fight Sergeant Meeks after he was first knocked down and got back up. Master Corporal Melvin [ 54 ] Master Corporal Melvin identified Sergeant Meeks for the record and testified that: (

a) prior to the incidents before the Court, as a private, Sergeant Meeks had been his

section commander; (

b) he had gone out with his fellow soldiers the evening before the incident, and although they did not go out with Sergeant Meeks, they did cross paths with him on two occasions: i. Restaurant: They saw Sergeant Meeks at the restaurant. While at that restaurant, his group ate and drank beer. He described them sharing a big tube of beer and that the beer was going down “quite good”. While they were all at that restaurant, they were all pretty happy as they were in Germany eating schnitzel and Sergeant Meeks had bought them drinks.

In cross- examination, he confirmed the drinks bought by Sergeant Meeks as Jägermeister shots. His group then left the restaurant and went bar- hopping, having a drink in each bar; ii. Final Nightclub: They saw Sergeant Meeks again at the nightclub which he also described as a strip club; (

c) it was at the final nightclub where Sergeant Meeks advised him that they were on a communications lockdown and had to get back to base and that someone had been injured from the jump; (

d) he described the tone of Sergeant Meeks as assertive and a little frantic; (

e) he understood immediately what Sergeant Meeks was saying when advising him of the communications lockdown; (

f) he did not see who Sergeant Meeks spoke to afterwards, but described himself as trying to corral the people he had entered the bar with. He felt it was his duty to pass the information along; (

g) he next saw Sergeant Meeks when Sergeant Meeks grabbed him by his shirt, pushed him against the wall near the door and said, “Time to get the fuck out”; (

h) the tone of Sergeant Meeks’ voice became more frantic and angry, but he could still understand what he was saying;

(

i) in response, he told Sergeant Meeks to “Back the fuck up” as they were “all getting out of there” or words to that effect. He put his hands up and Sergeant Meeks backed off and went off to grab the remainder of the group; (

j) he was still inside the bar at that time trying to gather the last member, who he believed was Private Berthe; (

k) he then saw Sergeant Meeks again when he was standing by the door trying to ensure that members of his group were exiting the bar; (

l) after he made sure that Private Berthe was coming, they exited the bar; (

m) he later saw Sergeant Meeks pushing Private Berthe. He described that it occurred along a narrow alleyway and he saw Private Berthe fall to his buttocks; (

n) when he saw Sergeant Meeks push Private Berthe to the ground with both hands in the chest, Master Corporal Melvin immediately reacted; (

o) he stated that he was afraid that Sergeant Meeks might hit Private Berthe so Master Corporal Melvin pushed the sergeant off to the side and that is when he told Sergeant Meeks to pick on someone else; (

p) in response, he said Sergeant Meeks wanted to fight and that he was not able to determine if Sergeant Meeks understood what he (Master Corporal Melvin) was saying to Sergeant Meeks; (

q) he described what followed as a yelling match, but he cannot recall what Sergeant Meeks said while on the sidewalk while they were waiting for taxis to take them back to the base; (

r) although he could not recall the words Sergeant Meeks used, he understood the “messaging”, which was that Sergeant Meeks intended to get combative with him; (

s) next, they were only able to exchange words because people were holding the two of them back; (

t) then Private Meadows came up and told them that the taxis were about to arrive and to cool down and then Sergeant Meeks either pushed or struck Private Meadows as he then saw Private Meadows fall to the ground with Sergeant Meeks standing just above him; (

u) when Private Meadows fell to the ground face first, he did not hear anything being said; (

v) he then saw Sergeant Meeks about two and a half metres away being hauled back by fellow members; (

w) after Private Meadows was on the ground, he witnessed Sergeant Meeks stomp on Private Meadows on and above his shoulders, including in the head area. He stated that Sergeant Meeks: used his right leg; stomped three times as though he was putting out a fire; was wearing a brown loafer; and he stomped on the side of Private Meadows head, who was on the ground; (

x) after the stomps, his fellow soldiers pulled Sergeant Meeks further away onto the road and the taxis were arriving and they threw him into the back of a taxi;

(

y) he stated that Private Meadows did not react to the stomps; (

z) after Sergeant Meeks stomped on Private Meadows, there were people holding Sergeant Meeks back and they re-establisheda firm grip on him and tried to pull him away; [55] Under cross-examination, Master Corporal Melvin made the following admissions: (

a) in response to Sergeant Meeks telling him that it was “time to get the fuck out”, he also pushed Sergeant Meeks; (

b) he was pretty sure there were three foot stomps, but admitted that it could have been more or it could have been less; (

c) he himself was quite intoxicated; (

d) he was trying to fight with Sergeant Meeks; (

e) he recalled that he had forgotten his cigarettes and was going back for them when Sergeant Meeks grabbed his shirt, whichwas the first sign of any animosity between them that night; (

f) retrieving his cigarettes was en route to getting Private Berthe; (

g) when he saw Sergeant Meeks going after Private Berthe, he wanted to fight Sergeant Meeks; and (

h) Sergeant Meeks knew that he wanted to fight him. Presumption of innocence [56] In light of the uniqueness of the facts before the Court, it is important to emphasize the presumption of innocence to whichSergeant Meeks is entitled. The presumption of innocence remains throughout the court martial until such time as the prosecution has, onthe evidence put before the Court, satisfied the Court beyond a reasonable doubt that the accused is guilty of the charges before it. [57] So, what does the expression “beyond a reasonable doubt” mean?

The term “beyond a reasonable doubt” is anchored in ourhistory and traditions of justice. It is so entrenched in our criminal law that some think it needs no explanation, but its meaning bearsrepeating (see R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, paragraph 39): A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence. [58] In essence, this means that even if I believe that Sergeant Meeks is probably guilty or likely guilty, that is not sufficient.

If theprosecution fails to satisfy me of his guilt beyond a reasonable doubt, I must give him the benefit of the doubt and acquit him. [59] On the other hand, it is virtually impossible to prove anything to an absolute certainty and the prosecution is not required to doso. Such a standard of proof is impossibly high. Therefore, in order to find Sergeant Meeks guilty of the charges before the Court, the

onus is on the prosecution to prove something less than an absolute certainty, but more than probable guilt for the charges set out in the charge sheet (see R. v. Starr , 2000 SCC 40 , [2000] 2 S.C.R. 144, paragraph 242 ). Credibility of the witnesses [ 60 ] I noted that there was disparity in the testimony as to exactly what happened during the scuffle that led to the charges before the Court. [ 61 ] Given that the events took place well over three years ago, it is not unusual that the evidence of the witnesses is inconsistent or even contradictory.

Witnesses may have different recollections of the events and the Court has to determine what evidence it finds credible and reliable. [ 62 ] I noted that in Sergeant Meeks’ testimony, he recalled arriving back at the Ramstein Air Base where he saw all the soldiers involved in the incidents early that morning, huddled together presumably discussing what had unfolded. [ 63 ] Given the tight-knit nature of soldiers within a unit, a court martial must be particularly mindful and alert to unique evidentiary concerns.

From the onset of the trial, I was alert to the risk of collusion in the testimony of the witnesses, whether intentional or unintentional. [ 64 ] I am always attentive to the potential that the investigative authorities might have been blinded by tunnel vision in their investigation.

Tunnel vision exists when authorities focus on only one suspect or cause and ignore or suppress evidence that is inconsistent with the suspect’s guilt. [ 65 ] In reviewing the evidence, I found it unlikely that any of the witnesses concocted evidence, but there were a few facts testified to that were unsupported by the whole of the evidence.

The Court remained extremely vigilant and exercised heightened caution as to whether witnesses conflated what they saw with what they heard from their fellow soldiers. [ 66 ] Consequently, I was particularly alert to the potential that the witnesses may have unconsciously coloured or tailored their individual description of the events based on what they heard from their fellow soldiers. [ 67 ] With respect to the charges before the Court, the main prosecution witnesses included the complainants, Privates Berthe and Meadows as well as five additional witnesses who saw at least some part of the events unfold.

It was noted that at the time of the events, they were all intoxicated. Their level of intoxication was an additional consideration in the Court’s assessment of the reliability of some of the evidence and the Court needed to assess the evidence from all the witnesses in order to make a determination of what evidence as a whole should be believed. [ 68 ] As mentioned earlier, few witnesses observed all the relevant events. As a result, I found that they testified to observing different parts of the scuffle depending on when they were personally paying attention or were actively engaged.

Some witnesses were very clear in saying that they did not recall something, or they were not paying attention at various stages. Other witnesses were not as straightforward, and I found that there was a high probability that some witnesses recounted or described events that were either poorly recalled or were conflated with stories they heard. As an example, Master Corporal Melvin was adamant that after he saw Private Berthe thrown onto his buttocks, he reacted immediately and pushed Sergeant Meeks to ensure that he did not hit Private Berthe any further.

However, the whole of the evidence does not support this fact, but I did note that other witnesses described Private Meadows having been pushed and falling on the ground before getting back up. I also note that Private Meadows himself testified that he was pushed to the ground, got back up, and Private Melvin engaging Sergeant Meeks at that time.

As they were all intoxicated, it became evident that some details of the assaults had been confused, causing the court to be extra diligent in determining what evidence was the most reliable. [ 69 ] The demeanour of the witness while testifying is a factor which can be used in assessing credibility ; that is, was the witness responsive to questions, straightforward in his or her answers or evasive, hesitant or argumentative? [ 70 ] Generally, I found all the witnesses credible, and non-confrontational and they all did their very best to recount the events they

witnessed. They were not argumentative and answered all the questions in a straightforward manner. [71] Firstly, I noted that both Privates Berthe and Prupas have released from the CAF and are living far from the Petawawa areaand their former peers. Private Berthe testified from where he is living and working in northern Quebec and Private Prupas testified fromoutside of the country. I found that they both testified very clearly and without hesitation with respect to the events they personallywitnessed and they were both very clear in identifying when they did not observe something.

They provided the court with importantcontext and insight as to how the situation evolved and what unfolded. Based on their testimony, I also found that the two of themappeared to be best situated to observe the events that unfolded and since they are no longer serving with the units, their testimonyappeared to be unbiased and very straightforward. Based on what they could recall, neither of them were hesitant to provide details.

As Iwill explain in more detail, I found the incidents recounted in their versions of the events provided the Court with the most plausibledescription of what unfolded in the context of the whole of the evidence. [72] Similarly, I found that Corporal Gebeshuber provided very credible evidence consistent with the evidence as a whole when heprovided details with respect to those events he witnessed. He was honest and forthright as to when he started to pay attention and whathe saw.

As an example, he explained that he was not paying attention to what was unfolding with the initial arguing, etc., because he wasmore concerned with the fact that one of his fellow peers might have died. He did not try to speculate or attempt to fill in the gapsregarding what he did not see or could not recall. I noted that he testified that he first noticed the conflict between Private Berthe andSergeant Meeks, which, based on when he started to pay attention to the scuffle, makes perfect sense. [73] I found the testimony of both Captains Korajlija and Simmons to be both credible and reliable.

Their respective testimoniesprovided important background as well as confirmation as to how the scuffle ended and their role in it. They were both consistent and Ifound that they testified without bias or judgement of anyone involved. [74] However, it does not follow that because there is a finding that a witness is credible, that his or her testimony is reliable.

Infact, a witness may be completely sincere and speaking to the truth as the witness believes it to be; however, due to a number of reasons,including but not limited to the passage of time or memory, or a high level of intoxication, the actual accuracy of the witness’s accountmay not be reliable. So, in effect, the testimony of a credible or an honest witness may nonetheless be unreliable (see R. v. Clark, 2012CMAC 3 at paragraph 48 quoting R. v. Morrissey, (ON CA), [1995] O.J. No. 639, 97 CCC (3d) 193 (Ont CA), atpage 205). [75] In other words credibility is not an all or nothing proposition.

A finding that a witness is credible does not require a trier offact to accept all the witness’s testimony without qualification. A court may accept or reject, some, none or all of the evidence of anywitness who testifies in the proceedings. [76] I had specific concerns regarding the reliability of the evidence of two witnesses which I explain below and will expand onthroughout my analysis. [77] In assessing the witnesses, I looked very closely as to whether the witness's testimony was consistent with itself and with theuncontradicted facts.

Although I note that none of the charges are laid with respect to rank differences, and neither counsel madesubmissions on these facts, I found it necessary to rely upon my military experience to help me properly understand the dynamics of whatunfolded. [78] I found the reliability of Master Corporal Melvin’s testimony to be the most problematic. I found much of his evidence to beinconsistent with itself and the evidence as a whole arising from the testimony of the other witnesses.

It was clear that he was veryintoxicated on the night in question and based on the consistency of the whole of the evidence, it was his decision to go back into the bar,in search of his cigarettes which appears to have been the catalyst to the conflict that later erupted.

Given that much of the prosecution’scase relied heavily on Master Corporal Melvin’s evidence or specific facts that flowed from it, I was very diligent to examine theconsistency of all his testimony whether it was relevant or not. [79] I noted that under direct examination, Master Corporal Melvin did not even refer to his decision to retrieve his cigarettes as atrigger nor did he describe his involvement in the incident that led to the conflict. It was only after being cross-examined on this pointthat he somewhat admitted that his decision to return for his cigarettes was a point of contention.

But even then, his description of theevent changed and was inconsistent both with his evidence under direct examination as well as the evidence as a whole. I also found himto be particularly evasive in responding to questions that were important in validating critical facts of what transpired.

[ 80 ] The consistency of the evidence was that Sergeant Meeks became upset because the junior ranks were not clearing out as they had been first instructed to do. Under cross-examination, Sergeant Meeks admitted that the soldiers were not given an order the first time, but since they were not taking the direction to return to base seriously, they were given a clear order the second time. The evidence suggests he did this in the company of Captain Simmons.

In fact, Sergeant Meeks specifically recalls being with Captain Simmons when they conveyed the order to Private Melvin to leave the nightclub. [ 81 ] This is where I must rely upon my military experience to consider the rank difference in the context of the events that were unfolding.

Sergeant Meeks, who was an experienced infantry non-commissioned officer (NCO) with three operational tours, where soldiers’ lives were lost, understood the shift between enjoying the social evening out to transitioning immediately to the more operational response demanded by the situation given the accident on the airfield in Bulgaria. He had just completed his Intermediate Leadership Qualification (warrant officer qualification) and he was the Platoon Warrant Officer. The others involved were privates with no operational experience. I also noted that Master Corporal Melvin testified to being in Sergeant Meeks’

section for at least six months prior to the incidents before the Court so it is highly likely that they had some prior history between the two of them whether it was too much familiarity or alternatively some hostility. Nonetheless, their rank differential is something that cannot be lost in the context of the facts and which needs to be highlighted in order to understand how the conflict elevated. [ 82 ] The facts are unrefuted that Sergeant Meeks was trying to corral a group of very drunk privates, and who were not taking the urgency of the situation seriously enough.

As Captain Simmons testified, while he was outside trying to coordinate taxis, he personally witnessed Sergeant Meeks talking to the junior ranks, stressing the importance of the situation before them, the meaning of the communications lockdown and the order to return to base. Sergeant Meeks explained to the junior ranks how someone from their unit was likely seriously injured with at least a broken back. [ 83 ] The evidence confirms that Sergeant Meeks naturally assumed his role as the senior NCO on the ground and he was making every effort to enforce compliance with the order to return to base.

In combat and on operations, orders given are expected to be followed. They are not discretionary and there is not to be any discussion. A failure to comply could lead to very serious consequences. It is for this reason, there are particular offences set out in the NDA to mitigate the consequences that flow from this type of situation.

For example, there are service offences under the NDA for disobedience of a lawful command (section 83 of the NDA ), insubordinate behaviour (section 85 of the NDA ), striking or offering violence to a superior officer (section 84 of the NDA ) which is complimented by the corresponding offence of abuse of subordinates (section 95 of the NDA ). In this type of situation, rank matters. [ 84 ] As Captain Simmons testified that when the troops were organizing themselves outside on the sidewalk, the situation seemed to be under control.

So the court first asked itself, what changed? [ 85 ] Captain Simmons described the evolving situation outdoors as follows: “Q. Okay. So you’re outside the bar, what happens next ? A. I was trying to organize taxis to get the group of us home when there was, sort of, an altercation started brewing outside the bar. Q. Okay. You said an altercation brewing. What do you mean by that? A. Well, It didn’t start violent right away. I think I recall—or I do recall Sergeant Meeks trying to impress upon the junior rank soldiers what—like, what a comms lockdown was and the implications of that being enacted.

And I don’t remember what exactly transpired, but it turned into raised voices and then pushing and shoving. Q. Who had raised voices? A. Well, I don’t know if—you know, I can’t point out individual people. Certainly Private Meadows, Private Melvin, Private Berthe, I remember, were all sort of yelling at Sergeant Meeks and Sergeant Meeks was yelling back at them generally, but I can’t recall specifically who he was yelling at.

But I do remember people yelling because we were making a lot of noise and people from the balconies of the buildings around the street were yelling at us to stop yelling.” [ 86 ] As Privates Berthe and Prupas testified, it was Private Melvin’s decision to return to the bar to get his cigarettes that led to the altercation between Private Melvin and Sergeant Meeks. In the relevant timeline, I note that being outside on the sidewalk was the last thing that Sergeant Meeks remembers.

He does not remember the arguing that ensued and the evidence suggests that it was after this point that the shouting and pushing began. [ 87 ] Private Prupas testified as follows:

“Q. You said Melvin went back up to the bar. Can you describe that further, please? A. So I’m just remembering him coming back down, saying that he had to run back up because he left his cell phone in the bar. I just remember speaking to him as he was coming back down. Q. Okay. So you are all outside on the sidewalk. What happened while you were out there? A. From what I remember there was a— when Melvin came back down, there was an altercation between him and Sergeant Meeks, maybe others. I don’t remember. But—and Sergeant Meeks. Q. Okay. What do you mean by “altercation”? A.

What I mean is Sergeant Meeks was upset with Melvin because he told—he ordered everybody to leave the bar, but Melvin went back up to get his phone. So there was an argument about that. Q. What did Sergeant Meeks say? A. I can’t say word for word, but—I don’t remember exactly. Something like, this is—I don’t remember exactly. Q. During this exchange, what was Sergeant Meeks’ demeanour? A. Angry. Q. So what happened next? A. So I believe a shouting match ensued and maybe some pushing started as well. Q. Okay. When you say shoving match, who was involved in that? A.

Sergeant Meeks and Melvin.” [ 88 ] Based on the rank difference, including the differences in their operational backgrounds and the sudden operational urgency of the situation that presented itself, it is understandable why Sergeant Meeks would have confronted Private Melvin. The Court also learned of Sergeant Meeks’ tendency towards hyper-vigilance in the performance of his duties. After returning from his second tour in Afghanistan, Sergeant Meeks admitted that his anger would be triggered when soldiers did not take seriously enough operational matters that affect their safety.

Given the fact that a soldier’s life was at stake, it explains why Sergeant Meeks became very angry with Private Melvin. [ 89 ] However, Master Corporal Melvin’s description of what unfolded was different and during his direct examination, he did not refer to any conflict with Sergeant Meeks regarding the cigarettes. Rather, he told the court that Sergeant Meeks got upset with him, grabbed his shirt, telling him it was “time to get the fuck out” an incident which no other witness observed. His testimony seemed to suggest that this was unprovoked as he was simply waiting for his peers to leave.

Based on his cross-examination and the testimony of the other witnesses who were there, this was not the case. Under cross-examination, when asked whether someone had forgotten their cigarettes, he admitted that that was what the shirt grabbing incident related to. He testified as follows: “Q. You don’t recall anyone indicating he had forgot their cigarettes and wanting to go back in? A. That was not in the bar—that was not when we left the bar. We were still very much inside the bar when that happened. Q. Okay. And what . . . A. We were talking about the physical bar itself, where you receive your drinks. Q.

Okay. And so tell us about that cigarette incident? A. That is the incident that led to Sergeant Meeks grabbing my shirt, I am pretty sure. Q. And that’s really the first animosity that was developing between you and Sergeant Meeks on that evening, correct? A. The whole night. Yes, sir. Q. Okay. And earlier in your testimony in chief, you told this court that he got mad at you, because you weren’t leaving, but you were trying to corral some of the people you had come with. That was your evidence a little while ago, correct? A. Correct.

Q. But part of what you were going back for was to get your cigarettes as well, because you had forgotten them someplace? A. Correct. Q. Okay. So why didn’t you tell the court that when you said what it was that you were going in an argument with Sergeant Meeks about? Were you trying to hide that fact? A. Negative, no. Q. Well, I put to you that it’s not following the direction to leave right away is more acceptable if you were going in to get some drunk private that hadn’t been leaving yet as opposed to if you were going backwards to get your cigarettes that you had forgotten? A.

Well, on the way to the bar, or, sorry—on the way to my cigarettes was the way to the drunk private, so I saw my cigarettes and I therefore remembered that I didn’t grab my cigarettes.” [ 90 ] Further, I noted that in his testimony, he said that he exited the nightclub with Private Berthe: “Q. And after you started corralling them, where did you move to? A. By the door to, like, ensure that they were leaving and exiting the bar. Q. Okay. And then where was it that Sergeant Meeks—where you saw Sergeant Meeks that second time? A.

Where I was, standing by the door, ensuring that my—the people that I showed up with were exiting the bar. Q. Okay. And did you then—did you—what happened after that? What happened after that? You saw Meeks go to your right. What happened after that? A. I made sure that Private Berthe was coming along and then I grabbed him and we proceeded to exit the bar. … Q. Who was last out? A. That was myself and Berthe. Oh, out of my crew or out of everybody? Q. Out of your group? A.

It was myself and Berthe.” [ 91 ] Interestingly, the evidence of Master Corporal Melvin himself was that he only responded to Sergeant Meeks’ challenge with words to the effect of “Back the fuck up” and said he just put his hands up and that Sergeant Meeks simply left. He described his reaction to Sergeant Meeks as follows: “Q. And how did you react when he grabbed you and pushed up against the wall? A. I believe I told him to—I think—I believe I told him to like back the fuck up. I think we are all getting out of here at the same time. Something along those lines. Q. Yeah. A. And I—yeah. Q.

So do you react physically when he did that to you? A. Beside put my arms out like this, negative . Q. All right. So then the next question is, how did Sergeant Meeks react to your reaction? What happened after that? A. I believe he just backed up and went off to grab the remainder of the people, I believe.” [ 92 ] However, under cross-examination, Master Corporal Melvin described this incident differently, but this time he admitted to actually pushing Sergeant Meeks in response:

“Q. Now, you indicated earlier that at one point you put both your hands up in response to Sergeant Meeks. Was that the grabbing of your t-shirt collar? A. Correct. Q. Okay. And did both of those hands come in contact with Sergeant Meeks? A. I believe I did push him in the chest there, sir. Q. Okay. And how far back would he have moved as a result of you pushing him? A. Maybe a step. Q. Okay. And at that stage though, he goes back a step from you pushing him, and then if I understand your evidence correctly, he left to do something else. He didn’t engage with you further. Is that correct? A. Correct. Q.

So after pushing him, there’s no more contact; he didn’t tell you to fuck off on the way out the door when going away or anything like that. He just left? A. As I remember it, yeah. Q. And then once you were outside, you had a pretty strong desire to fight with him. Is that correct? A. Negative, no.” [ 93 ] Although I find it possible this type of verbal exchange occurred at some point, I have considerable doubt that it unfolded as described.

I find that when Private Melvin returned for his cigarettes, after being ordered to leave the nightclub, he was challenged directly by Sergeant Meeks for his decision to disobey the order to exit the nightclub. [ 94 ] Next, in my assessment of the reliability of Master Corporal Melvin’s version of events, I considered where this challenge took place?

I note that, in his testimony, Master Corporal Melvin told the Court that this grabbing happened inside the nightclub by the wall nearest to the door and would have occurred before they actually left, as they were still very much inside the bar. [ 95 ] The evidence of the other witnesses suggests they were all standing outside together in a gaggle waiting for taxis when Private Melvin went back inside to retrieve his cigarettes. In fact, Sergeant Meeks testified that he specifically recalls Private Melvin trying to go back into the nightclub, but he has no memory as to what happened after that point.

So clearly, he was outside at some point before attempting to go back in. [ 96 ] I wondered whether the conflict started inside the nightclub and then continued outside; however, in light of Master Corporal Melvin’s admission that this shirt incident inside the nightclub was related to his return to retrieve his cigarettes, I then noted that he provided no explanation as to how this interaction inside the nightclub might have led to the conflict that the witnesses observed outside.

The other witnesses clearly understood that the conflict outside between Sergeant Meeks and Private Melvin related to Private Melvin’s decision to return for his cigarettes. [ 97 ] Private Prupas explained that it was only after they were told to leave the second time that they eventually shuffled outside. He described how they were standing in a gaggle outside of the bar, when Private Melvin went back up to the bar to retrieve something. From what he recalls, it was when Private Melvin came back down from the nightclub that there was an altercation between him and Sergeant Meeks.

He also told the court that he specifically remembers speaking with Private Melvin when he came back down. He said that a shouting match ensued between the two which involved some pushing. At that time, he said it was only Private Melvin and Sergeant Meeks involved. [ 98 ] Private Berthe also testified that the fighting first began outside between Private Melvin and Sergeant Meeks as he explained to the court why he got in involved and inserted himself between the two of them to calm them both down.

However, Master Corporal Melvin’s testimony suggested that he only became engaged in the altercation to rescue Private Berthe from being beaten by the sergeant which simply does not make any sense and is completely inconsistent with the evidence of Privates Berthe and Prupas. [ 99 ] If it is true that this incident unfolded inside the nightclub, then the evidence suggests that Sergeant Meeks would have been in the company of Captain Simmons as other witnesses told the court they were together in ordering the remaining soldiers to leave.

Sergeant Meeks specifically remembers being with Captain Simmons when he told Private Melvin it was time to leave. Private Prupas also testified that Sergeant Meeks and Captain Simmons were together when they returned to order them all out. After they exited, Captain Simmons visually witnessed Sergeant Meeks standing outside talking to the privates and it was shortly thereafter that the talking

escalated. If Sergeant Meeks had in fact been with Captain Simmons, I see no reason why Captain Simmons would not have told the court about the shirt incident inside the bar. I am fully aware that this finding by itself does not mean that there was not an incident that occurred inside the door to the nightclub.

However, based on the whole of the evidence, and Master Corporal Melvin’s testimony that the shirt incident was the same as the cigarette incident, I find that if this incident occurred, it unfolded outside. [ 100 ] After assessing all the evidence, I find that the only plausible explanation is that this interaction occurred outside on the sidewalk and not in the nightclub itself as suggested by Master Corporal Melvin.

Further, I find that Privates Prupas’ and Berthe’s description of events that the conflict first began between Private Melvin and Sergeant Meeks to be the most plausible. [ 101 ] Having come to the conclusion that if this incident occurred, it happened outside on the sidewalk, I cannot accept Master Corporal Melvin’s evidence that Sergeant Meeks grabbed him by the shirt and pushed him the way he described. I am troubled by the fact that there were no witnesses to this alleged grabbing when they were all outside together in a gaggle.

Further, given the inconsistency in the way Master Corporal Melvin described this incident while admitting to pushing Sergeant Meeks who he says just walked away, defies all logic, keeping in mind that Master Corporal Melvin admitted in court that he also responded to Sergeant Meeks in a manner that I would describe as insubordinate using the words, “back the fuck up” followed by a push.

The other witnesses testified that Sergeant Meeks was enraged and the evidence suggests to me that he certainly would not just walk away after being pushed by a private who was being insubordinate and had disobeyed a direct order. [ 102 ] In his direct testimony, Master Corporal Melvin told the Court that after exiting with his back towards the bar and walking towards the road, he witnessed Private Berthe approximately 3.7 metres, or 12 feet, away being thrown onto his buttocks by Sergeant Meeks.

However, I also noted that Master Corporal Melvin told the court that “I made sure that Private Berthe was coming along and then I grabbed him and we proceeded to exit the bar.” He confirmed that he and Private Berthe were the last soldiers out of the nightclub. So, I wondered, how was it that he was walking out with Private Berthe and then Private Berthe was somehow immediately assaulted by Sergeant Meeks and thrown on the ground? He told the court: “Q. Okay. Did you see any other interactions with Sergeant Meeks and members of your group after you exited the bar? A. Correct.

That is what I seen—that was when I witnessed Sergeant Meeks pushing on Berthe, Private Berthe. Q. Okay. And what do you mean when you say pushing on Sergeant—on Private Berthe? A. It was a narrow, like, fenced in area, like, alleyway, I guess you would call it, and he was pushing Berthe, where I did see Private Berthe sort of, like, fall to his butt and that is when I had enough of that, and I believe I pushed Sergeant Meeks and told him that he should pick on somebody that is worth picking on or something along those lines. Q. All right.

And I apologize for getting too technical, but when you say that you saw Sergeant Meeks pushing Private Berthe, can you describe exactly—did you see any—was there any contact that you witnessed between Sergeant Meeks and Private Berthe? A. Yes. I seen Private Berthe on the ground, what appeared to be on his butt trying to get up, and the Sergeant, like, over top of him, not really allowing him to get up. I could not see if he was throwing punches or what, but . . . . Q. Did you have an opportunity to witness what had happened before that may have caused Private Berthe to end up on the ground? A. Yes.

I saw him push Private Berthe to the ground.” [ 103 ] I found his responses to the questions posed to him by counsel as to why Private Berthe was pushed to be particularly evasive. More specifically he appeared either unable or unwilling to describe exactly what

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